Girish Chandra Gupta, J.
1. This appeal is directed against a judgement dated 21st February, 2005 passed by the learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 1/November/2002 arising out of Sessions Case No. 16(9) of 2001 convicting the appellant-Subal Duley, under Section 302 of the Indian Penal Code and an order dated 22nd February, 2005 by which the convict was sentenced to suffer rigorous imprisonment for life as also to pay fine of Rs. 3,000/-, in default, to suffer rigorous imprisonment for three months for the offence punishable under Section 302 of the Indian Penal Code.
2. The facts and circumstances of the case briefly stated are that about eight years prior to the date of the incident the deceased Sibnath had developed an illicit relationship with Chhabirani, wife of the accused Kinkar. She at that point of time was a mother of two children. The deceased was at that point of time a student reading in school. Chhabirani and Sibnath had eloped together and were residing somewhere in Hooghly. Father of the deceased, Sibnath, traced him out and brought him back. He thereafter was married to Dulali. After his elopement Sibnath did not come back to the village. He was residing at Sarenga pursuing a business of iron scrap after he was married to Dulali. About a month prior to the date of incident Sibnath along with his wife Dulali and two sons, came back to his village Dheko in order to participate in a Puja festival. On the date of the incident i.e. 8th March, 1996 Kinkar, his brother Nalini, and his son Subal, picked up a quarrel with Sibnath at about 5.00 p.m. which was pacified by the intervention of well-wishers including Manas Chowdhury. At 7.00 p.m. Kinkar, Nalini and Subal once again came back, surrounded the deceased Sibnath, and killed him. A written complaint, was lodged within four hours. The learned Trial Judge has convicted the accused, Subal, and acquitted the accused Kinkar and Nalini. Subal has come up in appeal.
3. Mr. Sanyal, the learned Advocate, appearing for the appellant, assailed the judgement under challenge.
4. Before we consider the submission advanced by Mr. Sanyal, we would like to notice the evidence on record which is as follows.
5. The de facto complainant Smt. Lakshmi Duley (P.W.1) deposed, inter alia, as follows:
I reside at village Dheko under PS Raipore. Shibnath Duley was my son and his nick name was Shibu but he died about five years ago in the month of Falgoon at about evening hours and on that date, at that point of time, Shibu was murdered by Nalini Duley, Subal Duley and Kinkar Duley and Subal Duley hit on the chest of my son Shibu by an arrow and other two accused persons beat him by lathi and entire incident took place in my house and in my presence.
At the time of incident I tried to save my son from the hands of the accused persons but even then the accused persons murdered my son in my presence and at that time myself, wife of Shibu and Shibu were present in my house and the accused persons murdered just in front of my room. Prior to incident Sibnath used to continue his studies staying at Dheko School Boarding and when he used to stay in our house, we used to go to field for our job but Shibu used to take meal at that time in the house of the accused persons and ultimately a love relation was grown in between my son Shibu and wife of Kinkar son of Panchanan.
Accused Subal is son of Kinkar and Nalini is brother of Kinkar.
At the time of incident Kinkar and Nalini assaulted my son by lathi on his head and body.
Being injured by the accused persons, Shibu tried to flee to save himself but after running a short distance, he fell down and died.
6. In the cross-examination, she deposed that Chhabirani, after being deserted by her son Sibnath, eloped with another boy and did not return thereafter. Kinkar by that time married another woman known as 'Arati' P-W.2, Dulali widow of the deceased, Sibnath, deposed as follows:
I reside at village Dheko under PS Raipur. Sibnath Duley was my husband who had been murdered about five years ago at about evening hours in the month of Falgoon in front of our house being gheraoed by accused Kinkar, Nalini and Subal and being assaulted mercilessly by them by lathi and also by a hit of an arrow made by Subal and at that time my child was in my lap.
Kinkar and Nalini assaulted my husband by lathi and Subal hit by an arrow on the chest of my husband and being injured my husband tried to him to save himself but ultimately he fell down at a short distance from our house being injured and died at spot. My mother-in-law was present at that time. She tried to save my husband from the hands of the accused persons but she was in vain.
7. P.W.10, Radharani, niece of the deceased Sibnath, deposed as follows:
I reside at village Dekho under PS Raipur and I knew Sibnath Duley who was my uncle and Sibnath had been murdered by Kinkar, Nalini and Subal and Subal injured Sibnath.by arrow shot whereas Nalini and Kinkar assaulted him by lathi and at that time I was standing in front of our house and along with me my mother, my aunt and my grand-mother also were standing there and the arrow shot hit on the side of the chest of my uncle and being injured by the arrow shot my uncle began to flee but at a distance he fell down and died there and the place where my uncle fell down and died is situated just by the side of a asthaya tree. Today Nalini Duley is present but Kinkar and Subal are absent and the present accused person is identified by the accused person.
8. Inquest was held by Ashish Kumar Nandi, the Officer-in-Charge of Raipur Police Station. The inquest report has been marked Exhibit 3 which contains the substance of information collected from the witnesses present at the place of occurrence:
It is ascertained in course of investigation that or previous grudge was prevailing between the deceased and assailant since long. Out of said grudge accused Subal Duley, Kinkar Duley and Nalini Duley attacked him by bows and arrows and lathi due to arrow shot injury and other injuries suffered Sibnath succumbed on 8.3.96 at about 19. 00 hrs.
9. P.W.2, Dr. De, conducted the post-mortem examination on 12'' March, 1996, that is to say, on the fifth day from the date of death. His evidence is as follows:
I found following injuries on said deadbody.
One incised penetrating wound 1 x 1/2 inch x chest cavity over lower part of left side of front of chest 8' below the mid one-third of left clavical, 2' to the left of mid line of front and 3' below the left nipple.
On dissection I found that the injury passed through the skin fossa, muscles, vessels on the corresponding part
Fair amount of extravasated clotted and liquid blood seemed to infiltrate the tissues in and around the injury.
Opinion: Death in my opinion was due to effect of the injury described above, ante-mortem and homicidal in nature.
This is the P.M. report in original written, signed by me with date and official seal. Exhibit-5.
Said injury might happen by throw of arrow. Viscera, blood, scalp hair, nail scrap and arrow are sent with escort party.
10. From the evidence of P.W.13, Sri Dilip Karmakar, who took over the investigation from Ashish Kumar Nandy, the then Officer-in-Charge, it appears that the said Mr. Nandi had conducted the inquest. He had also examined some of the witnesses under Section 161 of the Cr.PC. From the evidence of P.W.13 it transpired that the said Mr. A.K. Nandi, the then O/C of the concerned police station committed suicide.
11. From the evidence discussed above, complicity of the accused persons is well established except for the fact that the autopsy surgeon deposed to have found only one arrow shot injury.
12. The eye-witnesses namely P.Ws. 1, 2 and 10, deposed that Kinkar, Nalini and Subal had jointly attacked the deceased Sibnath. Kinkar and Nalini had sticks in their hands. They assaulted Sibnath with sticks. The inquest report, Exhibit-3, goes to show that there were injuries on the body of the deceased which read in the light of the evidence of the eye-witness suggest that the same might have been inflicted by blunt weapons apart from the arrow shot injury. The post-mortem was held on the fifth day from the date of death. From the post-mortem report, it appears that the body at that time was fully decomposed. Therefore, the injury caused by blunt weapons like slicks might not have been discernible to the autopsy surgeon. The evidence of the autopsy surgeon (P.W.12) might have weighed with the learned Trial Judge by reason whereof he acquitted Kinkar and Nalini and convicted only the appellant. The views expressed by the learned Trial Judge are as follows:
Considering the entire prosecution evidences as a whole with cross-examinations coupled with the documents marked exhibited in this sessions trial, submissions of ld. Defence Lawyer and ld. P.P. the Court at last came to a finding that accused Subal Duley, 22 years, shot an arrow on the chest of Sibnath @ Shibu Duley on 8.3.96 at night causing his death after a while and he satisfied his previous grudge against Sibnath who was involved with illicit relation with his mother Smt. Chhabirani wife of accused Kinkar Duley. The motive of accused Subal Duley so was to take revenge on Sibnath by any way and Subal Duley on that score succeeded killing Sibnath Dmey, then married with his wife and children. Accordingly, prosecution has proved the charge under Section 302 of IPC against accused Subal Duley though by evidence prosecution failed to prove the charge under Section 302/34 of IPC against the accused Kinkar Duley and Nalini Duley. Accordingly, this Sessions Court finds that accused Subal Duley by murdering Sibnath Duley on 8.3.96 at night by throwing an arrow on him causing his death has committed an offence under Section 302 of IPC. Accordingly, he should be punished under Section 302 of IPC. So accused Subal Duley is taken into custody.
13. The State has not preferred any appeal. Therefore, the acquittal of Kinkar and Nalini is now a closed chapter.
14. Mr. Sanyal, the learned Advocate, appearing in support of the appeal, advanced the following submissions.
Mr. Sanyal drew our attention to the following portion of the evidence of P.W.10, Radharani.
Our para is known as Duleypara but the deadbody of my uncle was lying at Majhipara.
He also drew our attention to the inquest report, Exhibit 3, wherein the following recital is to be found:
Being present beneath the 'Ficus' tree on the northern edge of the road in front of the thatched roof house of Shital Roy of Dheko Majhipara engage myself in preparing the inquest report over the deadbody of the deceased Sibnath @ Shibu Duley.
15. Mr. Sanyal, based on aforesaid evidence, submitted that when the deadbody was lying at Majhipara, the place of occurrence, deposed to by the P.Ws.1, 2 and 10 is bound to be incorrect. We are unable to accept this submission. P.W.10 in her evidence deposed that 'My uncle was trying to flee towards Majhipara'.
16. P.W.1, mother of the deceased, deposed that there are three paras consisting of 300 families in their village. She further deposed that after Sibnath was injured by the arrow shot injury, he tried to flee away from the place. He ran a short distance and thereafter fell down. The evidence of P.W.1 has been corroborated by the evidence of the P.W.2. She deposed that her husband tried to flee to save himself but ultimately he fell down. It is, therefore, on evidence to show that the body of the deceased fell at some distance from the place of occurrence which may be within the Majhipara area. This submission of Mr. Sanyal, in our view, is therefore devoid of any merit.
17. The second submission, of Mr. Sanyal is that P.W.13 deposed that Ranjit Duley, P.W. 11, in his examination under Section 161 of the Code of Criminal Procedure, told him that Subal Patra was the assailant of his brother Sibnath. It may be pointed out that P.W. 11, Ranjit Duley, is not an eyewitness. He has deposed that he was informed by his daughter while he was working in his employer's house that Subal had murdered his brother. Therefore no reliance can be placed on his statement nor can on that basis, the evidence of the eye-witnesses viz. P.Ws.1, 2 and 10 be discredited.
18. The third submission made by Mr. Sanyal, is that P.W.2, the widow of Sibnath, deposed that there was an altercation between the assailants on the one hand and her husband before her husband was killed. Mr. Sanyal submitted that this altercation may have provided sudden provocation to the appellant.
19. We are unable to accept this submission. There is evidence on the record to show that at 5 p.m. in the evening the assailants had assembled and picked up a quarrel with the deceased. Their attempt was foiled by the intervention of villagers including one Manas Chowdhury. At that time they dispersed. The fact that they again came back at 7 p.m. goes to show that they had the intention to kill the deceased.
20. Lastly, it was submitted by Mr. Sanyal that it would appear from the examination of the appellant under Section 313 o the Code of Criminal Procedure that on 27th January, 2005 when he was examined under Section 313 he was 22 years old which would go to show that on the date of the incident, he was a juvenile.
21. On an earlier occasion, similar submission was advanced by Mr. Sanyal before a Division Bench of this Court on 18.7.2006 and after hearing the learned Advocate appearing for the parties, the said Division Bench had passed order in the following manner:
This appeal is directed against a judgement and order dated 21st February, 2005 passed by the learned Additional Sessions-Judge, 2nd Court, Bankura in Sessions Trial No. November, 2002 whereby the sole appellant being found guilty in respect of charge under Section 302 of the Indian Penal Code, was sentenced to sufler imprisonment for life and to pay fine of Rs. 3,000/- in default to suffer rigorous imprisonment for further three months. However, two other accused persons, who faced trial along with the present appellant, were acquitted.
Mr. Sanyal, the learned Counsel while opening the case on behalf of the appellant took a preliminary point which has persuaded us to decide the same before we proceed to hear him on merit.
Mr. K.J. Ahmed, learned Advocate for the State being led by the learned Additional Public Prosecutor, does not join issue.
Mr. Sanyal after referring to the column of examination of the appellant under Section 313 of the Code of Criminal Procedure has submitted that at the time of the examination of the appellant before the learned Trial Court, he was shown to be 22 years as on 27th January, 2005. Mr. Sanyal submitted that the incident took place on 8th March, 1996. By that reckoning he will very much be a minor and would be covered by the scope of Juvenile Justice Act, 1986. Mr. Sanyal submitted that if that be so, the trial by the learned 'essions Court would be illegal and this Court has to interfere solely on that ground. He referred to the decision of Bhola Bhagat and Ors. v. Stare of Bihar reported in 1998 SCC (Cri) 125 and submitted that in the event the appellant is found to be a juvenile, his entire trial would be vitiated on account of the same.
Mr. K.J. Ahmed being led by the learned Additional Public Prosecutor leaves the matter to the discretion of the Court.
The submission of Mr. Sanyal mainly on the basis of recording of the examination under Section 313 of the Code of Criminal Procedure, in our view, cannot be of much substance as the age shown in Section 313 of the Code of Criminal Procedure cannot be treated as substantive evidence. But, although we cannot be guided by the same as recording of age in the column under Section 313 of the Code of Criminal Procedure cannot be conclusive proof of the age of an accused see: State of Haryana v. Balwant Singh reported in 1993 SCC (Cri) 251. However, keeping in mind the fact that in the event the age is actually below 16 years and he is covered by the Juvenile Justice Act, the entire scene would change notwithstanding the aforesaid position, we feel that the hearing of the appeal should be suspended and the actual age of the appellant should be determined as this is a preliminary point which requires consideration.
Accordingly, we would request the Superintendent, Bankura Sammilani Medical College and Hospital to constitute a Medical Board consisting of the Professor and Head of the Department of Radiology, Professor and Head of the Department of Medicine and experts from such other discipline which he may seem fit and proper. The Medical Board is further requested to examine the appellant and determine his age and sent its opinion to the learned Chief Judicial Magistrate, Bankura, within a period of three weeks from the date of receipt of this order.
In the meantime, the learned Chief Judicial Magistrate will take necessary step for production of the appellant before the Medical Board to be constituted by the Superintendent of Bankura Sammilani Medical College and Hospital and after obtaining the said report will forward the same before this Court. It would however, also be open to the appellant to adduce evidence in respect of his age and the learned Chief Judicial Magistrate would, in the event the same is adduced, receive it in accordance with law and transmit the same along with the report of the Medical Board consisting of his finding on the basis of the above.
Office is directed to communicate this order at once.
22. Pursuant to the aforesaid order, an enquiry was conducted by the learned Chief Judicial Magistrate, Bankura on 2.9.2006, 6.9.2006 and 12.9.2006 and report dated 13th September, 2006 has been submitted by the learned CJM in the following manner:
A direction was also given by the Hon'ble High Court to the Superintendent, B.S.M.C & Hospital for constitution of a Medical Board for the purpose of examination of the convict Subal Duley for the purpose of determination of the age of the convict medically. Accordingly a Medical Board was constituted and the convict was medically examined by the Board on 23.8. 2006 and after such medical examination the Medical Board sent its report to this office.
Now, I am to forward the medical report of the Medical Board along with the evidence of the convict and his parents recorded by me on 6.9.2006 and 12.9.2006. I have gone through the medical report.
The medical report, opined that the age of the convict Subal Duley on the date of his medical examination, i.e., on 25.8.2000 is 25 years to 30 years. The Medical Board did not specify the perfect age of the convict on 25.8.2006. So it may be any number between 25 years and 30 years. The date of incident as reflected from the copy of the Hon'ble Court's order is 8th March, 1996 i.e., the incident took place 10 years 6 months ago. So, on the basis of medical report the convict may be of any age on the date of incident starting from 14 1/2 years to 19 1/2 years.
The convict in his evidence has stated that he is now 25 years but he has no document to prove his age but he suggested that his parents may have such documents. Accordingly his parents were also called on to give evidence, both oral and documentary, by the office. The parents of the convict appeared before me hut they failed to produce any documentary evidence in support of the age of the child, i.e., convict. Only oral evidence of the parents were recorded. The mother of the convict failed to mention the age of the convict by way of giving sufficient evidence due to illiteracy but she stated on the basis of guess that her child was about 14/15 years old at the time of incident.
On the contrary, the father of the convict is unable to supply the actual age of the convict but as per his assumption his son is now 15/16 years old. Thus, on the question of credibility the evidence of mother is more acceptable while comparing with the medical report. Therefore, after considering all aspect of the matter I am not in a position to come to a decision as to the age of the convict on the date of incident in the absence of any documentary proof.
As I am duty bound I am sending herewith the evidence of the convict and his parents recorded by me together with the opinion of the Medical Board to the Hon'ble Court as per direction of the Hon'ble High Court.
Let the entire file together with the report of the Medical Board be sent to the Hon'ble High Court after keeping a skeleton by a special messenger.
23. It appears that during the course of enquiry by the learned Magistrate, Medical Board was constituted which conducted ossification test and recorded that the age of appellant on 25.8.06 on which date the ossification test of the appellant was made was between 25 years to 30 years. The date of incident in the instant case is 8th March, 1996. The appellant according to recorded age of the Medical Board was 14 1/2 years to 19 1/2 years of age on the date of incident.
24. It cannot be denied that most important amongst all the tests is the ossification test in the present set of development in medical science. It is not out of place to mention that the opinion based on fusion of the bones is most trustworthy. It is, however, to be kept in view that about the range of error of margin, the normal rule that the range of error in the ossification may about two years on either side will have to be accepted. In this context, regard may be had to the decision in the case of Javanala v. Home Secretary, Government of Jammu & Kashmir and Ors. reported in : 1982CriLJ1777 . In para 9 of the report, it has been observed by the Hon'ble Supreme Court that one can take judicial note that margin of error in age ascertained by the radiological examination is two years on either side. Growing in age day by day is a involuntary process and the anatomical changes in the structure of the body continuously occur, in a case of this nature benefit of margin of error has to go to the accused. A hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The aforesaid aspect has been highlighted in the cases of Bhola Bhagat v. State of Bihar : 1998CriLJ390 and Gopi Nath Ghosh v. State of West Bengal 1984 SCC (Cri) 478.
25. If the age of the appellant is taken to be 25 years, then the age of the appellant on the date of incident and in view of the decision of the Hon'ble Supreme Court mentioned above would be 16 1/4 (14 1/2 + 2) and 17 1/2 (19 1/2 - 2) which is in conformity with the evidence of the father of the apoellant, who was examined as one of the witnesses in this case by the learned CJM, Bankura. Thus, applying the normal rule that the range of error in the ossification test may be two years on either side, the appellant would be definitely below 18 years of age on the date of incident that is on 8th March, 1996.
26. The Constitution Bench of the Hon'ble Supreme Court in Pratap Singh v. State of Jharkhand : 2005CriLJ3091 held:
31. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with a non-obstante clause. The sentence 'notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act came into force' has great significance. The proceedings in respect of a juvenile pending in any Court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term 'any Court' would include even ordinary Criminal Courts. If the person was a 'juvenile' under the 1986 Act the proceedings would not be pending in Criminal Courts. They would be pending in Criminal Courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.
It concluded:
37. The net result is:
(b) The 2000 Act would be applicable in a pending proceeding in any Court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1-4- 2001.
In a separate judgement, one of us (S.B. Sinha, J.J stated:
95. Section 20 of the Act of 2000 would, therefore, be applicable when a person is below the age of 18 years as on 1-4-2001. For the purpose of attracting Section 20 of the Act, it must be established that: (i) on the date of coming into force the proceedings in which the petitioner was accused were pending ; and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefor as contained in Section 20 or Section 64 are fulfilled. The said provisions repeatedly refer to the words 'juvenile' or 'delinquent Juveniles' specifically. This appears to be the Act and for ascertaining the true intent of Parliament, the rule of purposive construction must be adopted. The purpose or the Act would stand defeated if a child continues to be in the company of an adult. Thus, the Act of 2000 intends to give the protection only to a juvenile within the meaning of the said Act and not an adult. In other words, although it would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile.
Recently the Parliament has introduced Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006 (which came into force with effect from 23.8.2006), in terms whereof retrospective and restorative meaning was given to the definition of 'juvenile' stating:
4. In Section 2 of the principal Act,-
(iv) for Clause (1), the following Clause shall be substituted namely:
(1) 'juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;
27. In view of the decision of the Constitution Bench of the Apex Court as also amendments carried out by the Parliament, the appellant was below 18 years of age and entitled to claim protection under the Juvenile Justice (Care and Protection of Children) Act, 2000 which came into force on 1st April. 2001.
28. So far as the conviction of this appellant, we do not find any ground to hold that the learned Trial Court has committed any error in convicting the appellant.
29. Now, the question arises in relation to sentences. In view of our aforesaid finding that this appellant was juvenile on the date alleged occurrence and he has now attained majority, it would be just and expedient to set aside his sentences and pass an order of releasing him as he cannot be sent to remand home.
Accordingly, the appeal is allowed in part, and while upholding conviction of the appellant, his sentences are set aside and he is directed to be released forthwith, if not required in connection with any other case. The ultimate conclusion which we have taken gets support from the decision of Hon'ble Apex Court in the case of Babban Rai and Anr. v. State of Bihar 2008 SCW 511.
30. Let a copy of this judgement along with the Lower Court Records be remitted back to the learned Trial Court at once for information and necessary action.
31. Urgent xerox certified copy of this judgement, if applied for, be delivered to the learned Counsel for the parties on compliance of all formalities.
Kishore Kumar Prasad, J.
I agree.